民法上和解的实体私法契约性质之反思

Rethinking of the Substantive Private Law Contract Characteristic of Reconciliation in Civil Law

长期以来,民法上和解被归入民事实体私法契约体系之中。然而,以债法基本原理加以衡量可知,民法上和解关系的内容不限于财产关系,其性质不具有基础性,其标的不具有可确定性,与债法上的债务承认契约也有本质的区别。将民法上和解定性为实体私法契约的学说使得和解作为纠纷解决机制的应有的制度功能无从实现,应当予以废弃。

Reconciliation in civil law has been classified into the system of civil substantive private law contract for a long time.However,check the theory with basic principles for the law of obligation,we can conclude that the content of reconciliation in civil law is not limited to property relationship,the characteristic of it is not fundamental,and its target is uncertain.Furthermore,it has material difference between reconciliation in civil law and debt acknowledgement contract.The theory that characterize the reconciliation as the substantive private law contract makes it impossible to realize the due function when it is as a mechanism of dispute settlement,so this theory should be abandoned.